Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 | Case summary

The decision of the respondent dated 10 January 2017 to cancel the applicant's subclass 155 visa be set aside.
The applicant be released forthwith from immigration detention.
The respondent pay the applicant's costs of the proceedings as agreed or taxed.
The respondent may by email notify the Court and applicant within 7 days whether the respondent seeks to vary order 3 in which event the respondent is to propose the order it seeks and directions for resolution of the costs issue. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BCR16 6 BCR16 concerned a decision under s 501CA(4) of the Act. Section 501CA(4) enables the Minister to decide to revoke a decision to cancel a visa under s 501(3A). Section 501(3A) requires the Minister to cancel a person's visa in certain circumstances. The cancellation decision is referred to as the "original decision" in s 501CA. Section 501CA(4) provides that: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 7 In BCR 16 the appellant had made representations to the Minister in response to an invitation under s 501CA(3). Those representations included a claimed fear if forced to return to Lebanon. The briefing note to the Minister, on which the Assistant Minister relied to decide not to revoke the cancellation of the appellant's visa, dealt with this aspect of the applicant's claims in these terms: [the appellant] has made claims that may give rise to international non-refoulement obligations. However [the appellant] is able to make a valid application for another visa. In particular I note that [the appellant] is not prevented by s 501E of the Migration Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the appellant] for the purposes of determining whether or not to revoke the mandatory visa cancellation decision. 8 The majority in BCR16 (Bromberg and Mortimer JJ) concluded that this consideration involved legal error vitiating the Minister's decision. They reasoned as follows: (1) The Assistant Minister's reasons disclose that she assumed that "non-refoulement obligations will be examined during the protection visa determination process", but this assumption was wrong as a matter of law and had not been proved as a matter of fact (at [35] and [37]). (2) If a protection visa application was lodged, then the Minister was "free to decide the manner in which a protection visa application would be considered, the steps taken in that consideration, and the order in which criteria for a protection visa would be evaluated" (at [36] and [37]). (3) There is nothing in the legislative scheme relating to protection visas which prevents the character criteria (called up by s 65(1)(a)(ii) of the Act) being considered first (at [43]). (4) Because the appellant did not pass the character test by reason of the same facts which led to cancellation of the appellant's visa, the "appellant's protection visa application could therefore be refused under s 65 purely on character grounds pursuant to public interest criteria 4001 (a) or (b) [Migration Regulations 1994 (Cth) Sch 4], and the Minister or the Minister's delegate would, lawfully, never reach active consideration of the criteria in s 36(2)(a) and (aa), nor would the s 501(1) discretion ever have been engaged" (at [44]). (5) The same result, refusal of the appellant's protection visa application without consideration of the protection obligation criteria in s 36(2) of the Act (which concerns non-refoulement), could occur based on ss 36(1B) and (1C) which concern security risks and convictions of crimes (at [45]). (6) Indeed, "an applicant who poses real character concerns so far as the Minister or his delegates are concerned is unlikely to be granted a visa, and it makes much administrative sense for this to be dealt with as an initial consideration. That is not to say it must be done this way. Rather, the point is, the scheme of the Act permits - and, one might say, contemplates - it" (at [52]). (7) Further, the "circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act" in that the revocation power in s 501CA(4) is discretionary whereas s 65 involves the Minister being satisfied or not as to certain criteria. Accordingly, the "the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65" (at [48] and [49]). (8) Accordingly, the Assistant Minister's "expression of her understanding about the operation of the Migration Act and the consideration of risks of harm to the appellant during consideration of a protection visa application is incorrect, or at least incomplete". Specifically, the "Assistant Minister's linkage between her refusal to consider the "reason" put to her by the appellant, and the way the Act will operate if a protection visa application is made, …reveals the error" (at [60]). (9) The error is not failure to consider a mandatory relevant consideration (at [61]). The error should be characterised as "a failure to carry out the task required under s 501CA(4)" [at [62]). (10) "The error could also be characterised as a failure to carry out the task required under s 501CA(4) which requires consideration of whether there is 'another reason' to revoke the visa cancellation" (at [63]). (11) The Assistant Minister's reasons "betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia's international non-refoulement obligations. Whether or not the harm the appellant feared had a 'private quality' as the harm identified in Goundar [Goundar v Minister for Immigration & Border Protection [2016] FCA 1203], there were other reasons it might be harm outside the kind covered by Australia's international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a 'reason' the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task" (at [72]). (12) For these same reasons it was insufficient that "there was a "real possibility" the risk of serious or significant harm to the appellant might be addressed during consideration of any protection visa application he made" (at [73]). 9 The Minister applied for special leave in BCR16. The application has not yet been heard. The Minister did not seek that the hearing of this matter be adjourned but, rather, chose to proceed on the basis that BCR16 should be distinguished. The Minister accepted that if I conclude that BCR16 should not be distinguished, then the applicant should succeed, albeit reserving the capacity in any further appeal to contend that BCR16 was wrong. 10 The Minister submitted that BCR16 should be distinguished on a number of grounds. 11 First, it was submitted that the requirement for the Minister to form a state of satisfaction in s 501CA(4) was central to the majority's conclusion in BCR16, does not exist under s 501(2) which involves a broad discretionary power. I disagree. While Bromberg and Mortimer JJ characterised the error in multiple ways it is apparent that at least one basis was a constructive failure to perform the function required by s 501CA(4) by reason simply of misunderstanding the operation of the Act, specifically that it permitted an application for a protection visa to be refused on character grounds alone without consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality. 12 Second, it was submitted that s 501(2) is critically different from s 501CA(4) in that under s 501(2) the Minister need not consider non-refoulement obligations (Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56) or other factors personal to the visa holder (Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505). Accordingly, in contrast to BCR16 a misunderstanding of the operation of the Act in respect of what must be considered on a protection visa application, in the context of a decision under s 501(2), cannot constitute jurisdictional error. 13 In Le the appellant failed the character test. At issue was whether the Minister was bound to consider non-refoulement obligations in deciding whether or not to cancel the appellant's visa under s 501(2). The Full Court held that this was not a mandatory relevant consideration because "it remained open to Ms Le to make an application in Australia for a protection visa, at which point compliance with Australia's non-refoulement obligations (and the prospect of her indefinite detention) would have to be considered by the Minister" (at [41]). Bromberg and Mortimer JJ distinguished Le in BCR16. Their Honours noted that: (1) No argument was put to the Court in Le that, on a protection visa application, there was no requirement for the Minister to consider non-refoulement obligations if the applicant failed to satisfy a criterion such as the character test (at [87]). (2) Le concerned the issue whether there was a mandatory relevant consideration which had not been taken into account (at [88]) and the Court in that case (and other cases analysed in Le and BCR16) were "simply not asked to grapple with the argument now put to this Court: namely that the legislative scheme which centres on s 65 does not require the s 36(2)(a) and (aa) criteria to be addressed in considering a protection visa application if a decision-maker elects to consider other criteria first, and finds other criteria not satisfied. At that point the duty to refuse crystallises, and may do so without s 36(2)(a) and (aa) having been addressed at all" (at [90]). (3) "Nor are any of the cases ending with Le concerned with a discretionary revocation under s 501CA, where possible future harm was put forward by a person as 'another reason' for revocation, for the purposes of s 501CA(4). That matter alone marks out decisions under s 501CA from this line of authority. These factors combine to render the line of authority culminating in Le distinguishable from the present circumstances of the appellant" (at [94]).. 14 In Huynh the appellant failed the character test. The Minister cancelled the appellant's visa under s 501(2). The issue was whether in so doing the Minister failed to have regard to mandatory relevant considerations. Kiefel and Bennett JJ held at [74] that the Minister was not bound to consider factors personal to the appellant in deciding to cancel a visa under s 501(2). At [80] their Honours held that the mere fact that the Minister had chosen to refer to some such matters did not convert those matters into mandatory relevant considerations. By analogy, in the present case the Minister contends that if the Minister did not consider non-refoulement obligations on an erroneous basis the error is nevertheless immaterial as the Minister was not bound to consider any such obligation in the first place. 15 I do not find these arguments persuasive reasons to distinguish BCR16. It may be accepted that ss 501(2) and 501CA(4) are different. It may be accepted that in making a decision to cancel a visa under s 501(2) the Minister is not bound to consider non-refoulement obligations (Le) or matters personal to the applicant (Huynh). But the fact remains that in both ss 501(2) and 501CA(4) the Minister is vested with the power to exercise a discretion, under s 501(2) to revoke a visa and under s 501CA(4) to cancel the revocation of a visa. Under both sections, the discretionary power is available if certain criteria are satisfied or not satisfied. While s 501CA(4)(b)(ii) includes satisfaction of the criterion that "there is another reason why the original decision should be revoked", this provision was not an essential basis for the majority's conclusion in BCR16. In neither BCR16 nor the present case is the argument one of a failure to consider a mandatory matter. The reasoning in Le and Huynh respectively was confined to the question whether in making a decision under s 501(2) the Minister was bound to consider non-refoulement obligations or matters personal to the applicant. The observations in Huynh at [80] do not extend beyond the proposition that the non-mandatory consideration in that case could not become a mandatory consideration merely because the Minister happened to refer to it in the course of making the decision. So much may be accepted; but it is not the argument put in the present case. 16 In the present case what is put is that, as in BCR16, the Minister made a decision to revoke the appellant's visa which, in law and fact, was based on an erroneous understanding of the operation of the Act, specifically that non-refoulement obligations must be considered in the context of a protection visa application. It is not apparent to me that there is a legitimate basis to distinguish the reasoning in BCR16 on the basis of Le and Huynh or by references to the functional and textual differences between s 501CA(4) and 501(2). In both cases, an ultimately discretionary decision, in material part, relied upon a false premise with the consequence that, in law, the discretion was not exercised at all. 17 Third, it was submitted that in contrast to BCR16, the Minister in fact considered the applicant's fears about returning to South Africa. I disagree. The purported consideration of these fears was expressly qualified at [68] of the reasons as a consideration to "the extent that these fears are not addressed through a Protection visa application". 18 Fourth, it was submitted that in contrast to BCR16, there is evidence in the present case that if the applicant lodges a protection visa application non-refoulement obligations will be considered. Ms Miranda Lauman, Assistant Secretary in the Onshore Protection Branch within the Department of Immigration and Border Protection, provided an affidavit in which Ms Lauman said that, in her experience, all decision-makers consider non-refoulement obligations before considering other reasons to refuse to grant a protection visa. Ms Lauman also annexed the Procedures Advice Manual 3 (PAM 3) which states that decision-makers must determine whether any protection obligations are engaged even if a protection visa cannot be granted. PAM 3 also states that if a delegate finds that an applicant is a refugee or engages Australia's complementary protection obligations, consideration must be given to the character test. 19 As the applicant submitted, this evidence should not lead to a different conclusion from that in BCR16. For one thing, the error in BCR16 was one of law in that the Act does not require non-refoulement obligations to be considered in the course of refusing to grant a protection visa. For another, and consistently with the reasoning in BCR16, it is not apparent how consideration in the context of a protection visa application which must be refused on character grounds can protect a failure to decide based on the actual operation of the Act. Nor is it apparent to me that PAM 3 is binding on decision-makers or that Ms Lauman's experience was the foundation for the assumption of the Minister in the present case that the applicant is "not prevented by s 48A of the Migration Act from making an application for a Protection Visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] or the purposes of this decision." 20 For these reasons I am unable to conclude that here is a legitimate basis to distinguish the decision in BCR16. It follows that the applicant is entitled to the relief sought.

Steyn v Minister for Immigration and Border Protection

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